Nebraska Law Review
Volume 79 | Issue 4
2000
Faithful to the Constitution: The Roadblock for
Nebraska's Schools
Richard E. Shugrue
Creighton Law School
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Richard E. Shugrue, Faithful to the Constitution: The Roadblock for Nebraska's Schools, 79 Neb. L. Rev. (2000)
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Article 8
Richard E. Shugrue*
Faithful to the Constitution: The
Roadblock For Nebraska's Schools
INTRODUCTION
For six decades, American schools have been the major battleground in the controversy surrounding the doctrine of separation of
church and state. This struggle, inevitably, pits claims that public
agents have violated the Establishment Clause' against claims that
public agents prevent the Free Exercise of Religion.2
On one side of the battle line are those who believe in the wall of
separation between church and state. 3 Although this doctrine is not
found in the Constitution itself, the Supreme Court has honored it
since 1878 when Reynolds v. United States4 resolved the question of
whether a man, wrapped in the cloak of Free Exercise, could violate a
federal statute banning plural marriages. 5 Combatants on this side
© Copyright held by the NEBRASKA LAW REVIEW.
*
1.
2.
3.
4.
5.
Professor of Law, Creighton University. The author expresses thanks to Nicole
Lindsey, a second year student at Creighton Law School, for her material help in
preparing this article.
See Rob Boston, Louisiana Time Warp, CHURCH & ST., June 2000, at 4,4. "School
officials in this region of north central Louisiana have simply refused to abide by
the U.S. Supreme Court's rulings barring state-sponsored prayer in public
schools. Every Monday, a student recites a Christian prayer over the loudspeaker." Id. at 4. "[I]n the hands of government what might begin as a tolerant
expression of religious views may end in a policy to indoctrinate and coerce." Lee
v. Weisman, 505 U.S. 577, 591-92 (1992).
See Scott E. Thompson, The Demise of Free Exercise: An HistoricalAnalysis of
Where We Are, and How We Got There, 11 REGENT U. L. REv. 169, 173 (1998)(stating that early legal challenges of Free Exercise proposed that man was free to
believe in anything, but his actions were subordinate to his religion if they disrupted good order or violated his civic duties).
See Lee, 505 U.S. at 606 ("'Our fathers seem to have been perfectly sincere in
their belief that the members of the Church would be more patriotic, and the
citizens of the State more religious, by keeping their respective functions entirely
separate.'" (quoting ESSAYS AND SPEECHES OF JEREMIAH S. BLACK 53 (Chauncey
F. Black ed., 1885))). To hold that the government may not at least respect the
religious nature of our people "would be [to prefer] those who believe in no religion over those who do believe." Zorach v. Clauson, 343 U.S. 306, 314 (1952).
98 U.S. 145 (1878).
Reynolds, a member of the Church of Jesus Christ of Latter-Day Saints, was married to his second wife in accordance with his polygamist beliefs and was subse-
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2000]
FAITHFUL TO THE CONSTITUTION
regard any incursion by religionists on public school property as a
threat to the individual liberty to be free from an establishment of
7
religion, 6 however they define that elusive term. They are prepared
to fight organized prayer and Bible reading in public schools,8 distribution of religious materials, 9 and virtually 1 any role for clergy on
1 2
school property,O whether in the classroom," auditorium or halls,
or on the playing field.13 These warriors take the position that no tax
funds should be used for any religious education, 14 and they feel that
6.
7.
8.
9.
10.
11.
12.
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14.
quently charged with bigamy and imprisoned in accordance with federal law.
The Supreme Court held that "it is impossible to believe that the constitutional
guaranty of religious freedom was intended to prohibit legislation in respect to
[marriage]." Reynolds, 98 U.S. at 165. While laws "cannot interfere with mere
religious belief and opinions, they may with practices." Id. at 166.
Adult religious groups may not have the same rights to meet on campus as student groups. The Supreme Court will hear a case during the October 2000 Term
that answers the very narrow question of whether adults have a right to meet on
school campuses for religious meetings. Rev. Barry W. Lynn, executive director
of Americans United for Separation of Church and State stated that "this case...
does not reopen the question of school-sponsored prayer." Americans United for
Separation of Church and State, U.S. Supreme Court Takes CaseAbout Religious
Groups'Access to Public Schools, at <http-/wNvwv.au.org/prO100O.htm.> (Oct. 10,
2000).
"Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon v. Kurtzman,
403 U.S. 602, 614 (1971).
Bible reading, presented objectively as part of a secular program of education,
may be done consistently with the First Amendment. See School Dist. v.
Schempp, 374 U.S. 203 (1963).
A public school district's practice of letting Gideon representatives distribute Bibles to fifth-graders was invalidated in Goodwin v. Cross County School District,
394 F. Supp. 417, 428 (E.D. Ark. 1973). However, a school district cannot prevent
or forbid distribution of Bibles to persons passing on the sidewalk in front of a
public high school because the sidewalk is a public forum. See Bacon v. BradleyBourbonnais High Sch. Dist., 707 F. Supp. 1005, 1008-09 (C.D. Ill. 1989).
Mandatory chapel attendance, including invocations and Bible readings, at certain governmentally operated military academies was held invalid under the Establishment clause. See Anderson v. Laird, 466 F.2d. 283 (D.C. Cir. 1972).
Attendance at religious exercises is an activity that a government may never
compel. See id. at 290.
See Chamberlain v. Dade County Bd. of Pub. Instruction, 171 So. 2d 535 (Fla.
1965)(holding that state-mandated prayer and devotional Bible reading in assemblies and public school classrooms violates the Federal Constitution).
See id.
See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000). "These invocations
are authorized by [the school district] and take place on government property at
government-sponsored school-related events." Id. at 2275. "[TIhe listening audience must perceive the pre-game message as a public expression of the views of
the majority of the student body delivered with the approval of the school administration. Id. at 2278.
The neutrality of aid must be considered as an indicator of'just how religious the
intent and effect of a given aid scheme really is." Mitchell v. Helms, 120 S. Ct.
2530, 2581 (2000)(Souter, J., dissenting). "[Ilfwe looked no further than even-
NEBRASKA LAW REVIEW
[Vol. 79:884
any accommodation of religion in public education is a slippery slope
leading inevitably to the destruction of the wall of separation.1 5 They
are convinced that their foes are militant advocates of an American
16
theocracy.
On the other side of the line are ardent believers in the notion that
the Supreme Court has torn religion from public schoolsl7 and replaced America's sacred educational heritage with a doctrine they
brand as atheismi8 or secular humanism.1 9 They accept without question the assertion of Justice Scalia2 0 that the Constitution accords religion preferential treatment 2 i and argue that separation of church
15.
16.
17.
18.
19.
20.
21.
handedness, and failed to ask what activities the aid might support... religious
schools could be blessed with government funding as massive as expenditures
made for the benefit of their public school counterparts." Id. at 2581-82.
Can a man excuse his practices.., because of his religious belief? To
permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to
become a law unto himself. Government could exist only in name under
such circumstances.
Reynolds v. United States, 98 U.S. 145, 166-67 (1878).
See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1538 n.12 (9th Cir.
1985)(Carby, J., concurring)(noting that secularization constitutes the means by
which schools achieve compliance with the Establishment Clause).
"A student wrote a letter that said: 'Dear God, why didn't you save the students
at Columbine High School?' God responded, saying: 'Dear student, I am not allowed in school.'" Daniel Washburn, Student-InitiatedReligiousSpeech in Public
Schools, 39 WASHBURN L.J. 273, 273 (2000).
Citizen magazine blames U.S. Supreme Court Justice Hugo Black for the wall of
separation that renders school prayer unconstitutional. See Rich Jefferson, The
Wall That Never Was, CITIZEN, Aut. 2000, at 23. "[Justice] Black's separationist
leanings became more aggressive over time, resulting in rulings that ordered the
removal of religious instruction, prayer and Bible reading from public schools."
Id.
See Mary Harter Mitchell, Secularism in Public Education: The Constitutional
Issues, 67 B.U. L. REv. 603 (1987). An actual organization exists that calls itself
Secular Humanism, based on the Humanist Manifestos of 1933 and 1973. See id.
at 623. The central tenet of Secularism "is that all human purpose, fulfillment,
and happiness derive from mankind ....
Also central to Secularism . . . is its
depreciation of supernaturalism, of divine revelation, and of hope for an afterlife." Id. at 624.
Justice Scalia is the Court's most vocal opponent of the Lemon test. "Like some
ghoul in a late-night horror movie... Lemon stalks our Establishment Clause
jurisprudence once again .... " Lamb's Chapel v. Center Moriches Union Free
Sch. Dist., 508 U.S. 384, 398 (1993)(Scalia, J., concurring). But see Steven G.
Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REv. 463,
471.
See Lamb's Chapel, 508 U.S. at 460 (Scalia, J., concurring). Scalia believes that
the Court should abandon the Lemon test because separation principles violate
the religious values embedded in the First Amendment by "those who adopted
our constitution, who believed that the public virtues inculcated by religion are a
public good." Id. But see Gey, supra note 20, at 471.
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FAITHFUL TO THE CONSTITUTION
and state is not only a constitutional fiction,22 but also a detriment to
religious liberty. 23 They hold tenaciously to the beliefs that prayers
belong in public schools and that the Ten Commandments should
hang on the walls of every classroom, 24 and they often proclaim that
evolution should be stripped from the curriculum and replaced with
creationism. 25 They believe that tax dollars can and should be spent
on educational systems operated by religious organizations 26 - let
textbooks be bought, let speech therapists and remedial reading
teachers be employed, 27 and let parochial school students ride the
22. The dissent in Lee v. Weisman, 505 U.S. 577 (1992), criticized the majority's holding against graduation prayer as "oblivious to our history," stating that the Establishment clause should be "determined by reference to historical practices,"
including prayer at Presidential inaugural addresses, Presidential Thanksgiving
proclamations, chaplain's prayers at the opening congressional sessions, and the
U.S. Supreme Court invocation, "God save the United States and this Honorable
Court." Id. at 633-35 (Scalia, J., dissenting).
23. In response to the "public's valid concern that our courts have become hostile
towards religion," House Joint Resolution 78 has been co-sponsored in the U.S.
House of Representatives by over 150 members of the House. See H.R.J. Res. 78,
105th Cong. (1997). According to U.S. Congressman Ernest J. Istook, Jr., "[a]
false and impossible standard of unanimity has been created, <such] that if a
single person objects to a prayer or other religious expression, then an entire
group must be silenced and censored. This is the exact opposite of free speech."
Ernest J. Istook, Religious Freedom Amendment Legal Review and Analysis:
House Joint Resolution 78 (visited Feb. 7, 2001) <http://religiousfreedom.house.
gov/rlegal.htm>.
24. See Stone v. Graham, 449 U.S. 39 (1980)(holding that hanging the Ten Commandments in classrooms is "official support" for religion and therefore
unconstitutional).
25. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Court struck down an Arkansas
state statute making it a crime to teach the theory of evolution. In Edwards v.
Aguillard, 482 U.S. 578 (1987), the Court struck down a Louisiana statute that
prohibited the teaching of evolution unless accompanied by instruction in "creation science."
26. In Mueller v. Allen, 463 U.S. 388 (1983), the Court upheld a statute granting a
state tax deduction for expenses incurred in providing tuition, textbooks, or
transportation of children attending any public or private school. The Court
found that the government had a secular purpose in approving the deduction because the deduction only helped aid nonreligious aspects of education. See id. at
394-95.
27. InBoard ofEducation v. Allen, 392 U.S. 236 (1968), the Court upheld a New York
law requiring school boards to loan secular textbooks to students in all public or
private schools. Two years later, the Court upheld Allen with respect to loaning
textbooks, but invalidated two types of aid to nonpublic schools: (1) the loaning of
secular instructional materials to parochial schools, and (2) the provision of guidance, testing, remedial, and therapeutic services by public school employees who
would provide services at the parochial schools. See Meek v. Pittenger, 421 U.S.
349 (1975). In Wolman v. Walter, 433 U.S. 229 (1977), the Court held that testing, therapeutic services, and diagnostic services were valid so long as the state
ran the programs.
NEBRASKA LAW REVIEW
[Vol. 79:884
public school busses, 28 they proclaim. They are prepared to crusade
for the proposition that if the treacherous, unelected judges forbid direct spending of taxes on projects directed toward the promotion of
religion, 2 9 then schemes such as vouchers 30 should be adopted to give
parents religion-driven freedom of choice in education. 3 1
The battles that have taken place have been waged over the meaning of the First Amendment to the United States Constitution. Since
the Supreme Court has ruled that the First Amendment applies to the
states, 3 2 litigants have rarely fought over the meaning of state constitutional language, 33 which has a rich history and unique meaning. 34
State constitutions have been sent to the back of the proverbial bus
and are literally ignored in the constitutional battles over state
schools and religion. 3 5 This article seeks to focus the attention of the
28. In Everson v. Board of Education, 330 U.S. 1 (1947), the Court held that local
school boards may establish programs that reimburse the parents of students at
public and nonprofit private schools for the money that the parents spend for bus
transportation. Busing parochial school children on public school buses merely
provides "a general program to help parents get their children, regardless of their
religion, safely and expeditiously to and from accredited schools." Id. at 18.
29. See generally Hunt-Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413
U.S. 756 (1973)(striking down financial aid programs for nonpublic elementary
and secondary schools as violative of the Establishment Clause).
30. Under a Wisconsin plan, a voucher, which is redeemable at schools that qualify
under the voucher program, is received from the government. See Wis. STAT.
ANN. § 119.23 (1999). This voucher covers what would be the full cost of the
child's education at a public school. See Greg Todd, Comment, "FullyParticipating" Voucher Programs and the Wisconsin Template: A Brick or a Breach in the
Wall of Church-State Separation?,2 U. PA. J. CONST. L. 710, 712-13 (2000). If the
tuition of the private school the child chooses to attend exceeds the cost of attending a public school, the parents will be required to pay the difference. See id.
31. In Mueller v. Allen, 463 U.S. 388 (1983), the Court stated that although lessening
the economic costs of attending a parochial school might make it easier for people
to choose to leave the public school system, this greater freedom of choice was
only incidental to the program; it did not constitute impermissible government
advancement of or involvement with religion.
32. See Everson v. Board of Education, 330 U.S. 1 (1947)(applying the establishment
clause to the states); Cantwell v. Connecticut, 310 U.S. 296 (1940)(applying the
free exercise clause to the states).
33. In Nebraska, for example, the clear majority of annotations since the 1940s relating to the religious freedoms clause, NEB. CONsT. art. I, § 4, cite to the First
Amendment of the United States Constitution and not directly to the state docu-
ment. See 6 WEST'S NEB. DIG. 2D, ConstitutionalLaw, Key No. 84, at 652-63. But
see Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962), appeal dismissed,
372 U.S. 705 (1962).
34. See ROBERT D. MIEWALD & PETER JOSEPH
LONGO, THE NEBRASKA STATE CONSTI-
TUTION: A REFERENCE GUIDE 35-37 (1993).
35. Compare Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990)(ignoring state constitution) with Garnett v. Renton Sch. Dist., 772 F. Supp. 531
(W.D. Wash. 1991)(interpreting the language of the Equal Access Act to exempt
the state from the federal law's mandate because Washington's constitution contained the more strict prohibition on the establishment of religion).
2000]
FAITHFUL TO THE CONSTITUTION
legal world on the fact that in the era of the New Federalism, 3 6 learning what the state fundamental law has to say on church-state relations is worthwhile. If the Supreme Court is serious about reempowering the states,3 7 the states should at least be free3 8to apply
their own constitutional guarantees to their local problems.
In the First Amendment War of the Titans, each side has won its
share of battles. For example, the victories of the opponents of the
wall of separation have created an environment in which Christian
children may establish Bible reading clubs on school property where
other non-curricular organizations are permitted to organize, 39 public
school employees who are "signers" for the deaf may work in parochial
school settings,40 and displaying Christian films on public school prop36. See, e.g., Leonard M. Neihoff, The New, Old Federalism,79 MICH. B.J. 538 (2000);
see also Jeffrey A. Modisett, Discoveringthe Impact of the "New Federalism"on
State Policy Makers: A State Attorney General's Perspective, 32 IND. L. REv. 141
(1998)(discussing several issues surrounding new federalism).
37. See Matthew D. Adler & Seth F. Kreimer, The New Etiquette ofFederalism:New
York, Printz and Yeskey, 1998 Sup. CT. REv. 71, 71 (stating that "[a] majority of
the Supreme Court once more believes that state autonomy is a fundamental,
constitutional value and has set out to develop that proposition from case to
case").
38. See Garnett v. Renton Sch. Dist., 772 F. Supp. 531 (W.D. Wash. 1991), for an
illustration of how one federal court applied state constitutional provisions to
thwart application of the federal law allowing students to read the Bible on
school property where the school has opened a form of open or public forum.
Not unmindful of the Supremacy Clause, U.S. CoNsT. art. VI, cl.2, and its
mandate that federal law, or constitutional provisions, override any state law or
constitutional provision where there is an actual conflict, and that religious activity in public school may implicate asserted federal constitutional guarantees (free
speech and free exercise) versus state bars to establishment, the author suggests
that the Court has created an artificial conflict by allowing schools to become
public or open forums in which free expression (including private religious
speech) must be tolerated.
39. In 1985, Bridget Mergens's request to form a Christian club that would meet at
school was denied by the school principal. See Mergens, 496 U.S. at 232.
Mergens brought suit, alleging that the school district's refusal to allow the club
to meet at the school violated the Equal Access Act, 20 U.S.C. §§ 4071-4074
(1994), which prohibits federally-funded schools from denying equal access to students who wish to conduct religious meetings on school property. See Mergens,
496 U.S. at 233. The Supreme Court held that Westside's denial of Mergens's
request to form a Christian club denied Mergens "equal access." See id. at 247.
40. The Establishment Clause does not prevent a school district from furnishing a
disabled child enrolled in parochial school with a sign-language interpreter to
facilitate the child's education. See Zobrest v. Catalina Foothills Sch. Dist., 509
U.S. 1, 13-14 (1993). "When the government offers a neutral service on the premises of a sectarian school as a part of a general program that is in no way skewed
towards religion,' it follows under our prior decisions that provision of that service does not offend the Establishment Clause." Id. at 10 (citations omitted)(quoting Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 488
(1986)).
NEBRASKA LAW REVIEW
[Vol. 79:884
erty is not an establishment of religion. 4 1 On the other side, those
who wish to maintain the wall of separation between church and state
as it has been judicially erected in the educational context have won
monumental cases such as Engel v. Vitale42 and Lee v. Weisman.43
The fact that litigation over the role of religion in schools is burgeoning should be no surprise, given the growing militancy of some
faiths and their announced goals of inserting their beliefs into the
daily life of public conduct, particularly conduct relating to schools.44
The 1999 Term of the Supreme Court yielded two important opinions
on the issue, one involving prayer in a school setting,4 5 the other involving government aid to religious schools.46
The prayer case involved an elected student's recital of a prayer
over a school-owned public address system prior to an inter-school
athletic competition. By a six to three vote, the Court determined that
the practice was a violation of the Establishment Clause. 4 7 The aid
41. See Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384
(1993).
42. 370 U.S. 421 (1962). "[Ilt is no part of the business of government to compose
official prayers for any group of the American people to recite as a part of a religious program carried on by government." Id. at 425. When the New York State
Board of Regents directed its schools to recite a daily nondenominational prayer
that the regents composed over the schools' public address systems, the Supreme
Court declared that the prayer breached the wall of separation between church
and state. See id.
43. 505 U.S. 577 (1992). In holding unconstitutional a public school graduation
prayer, Justice Kennedy wrote: "The undeniable fact is that the school district's
supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group ....
This pressure, though subtle and indirect, can be as real as any overt compulsion." Id. at 593. Where young graduates are induced to conform to state-sponsored prayers, such as graduation invocations, such prayer is forbidden by the
Establishment Clause. See id. at 599.
44. In Jones v. Clear Creek Independent School District,977 F.2d 963 (5th Cir. 1992),
nonsectarian, nonproselytizing, student-led prayer was deemed permissible at
high school graduations. See id.
45. See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000).
46. Direct, nonincidental aid to religious schools is not always impermissible. Moreover, aid that is divertible to religious use is not always impermissible. In Mitchell
v. Helms, 120 S. Ct. 2530 (2000), the Court found that providing federal fumds to
private schools for educational equipment does not constitute a law respecting an
establishment of religion simply because many of the schools are religiously affiliated. See id. at 2536-37; see also Agostini v. Felton, 521 U.S. 203 (1997)(approving a program that provided public employees to teach remedial classes at
religious schools).
47. See Santa Fe, 120 S. Ct. at 2283. In Santa Fe, the Court reasoned that the school
district's policy places minority views at the mercy of majority views. See id. The
pre-game prayers "bear the imprint of the State" because the use of the school's
public address system, the football players, the band members, the school name,
and the mascot all set up the context in which audience members must perceive
the pre-game message as delivered with the approval of the school administration. Id. at 2277.
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FAITHFUL TO THE CONSTITUTION
case involved a statute that channeled federal money, via state educational agencies, to local public school administrations that, in turn,
lent materials and equipment to private schools for "secular, neutral,
and nonideological" programs. 48 Most of the recipients of this aid
were Catholic schools. The Court found that the program neither resulted in governmental indoctrination nor defined its recipients by reference to religion, and thus was constitutional. 4 9 These decisions
send mixed signals regarding church-state relations in the twentyfirst century and add to the confusion that has characterized this jurisprudence for decades.SO
TESTS
In the nearly sixty years that has followed the Supreme Court's
declaration that a state statute requiring a flag salute and pledge of
allegiance in a public school was an unconstitutional infringement on
the rights of youngsters who did not believe in such symbolism, 5 1 the
Court has struggled with the conflicting claims surrounding churchstate relations. But, it has only been since the original school prayer
case in 196252 that the Court has tried to develop principles by which
53
to test claims of excessive involvement between church and state.
State courts, 54 on the other hand, and particularly Nebraska's,55 had
48. Mitchell, 120 S. Ct. at 2531. The relevant portion of the financing provision at
issue in Mitchell provides aid "for the acquisition and use of instructional and
educational materials, including library services and materials (including media
materials), assessments, reference materials, computer software and hardware
for instructional use, and other curricular materials." 20 U.S.C. § 7351(b)(2)
(2000).
49. See Mitchell, 120 S. Ct. at 2540 (considering only the financing provision's effect,
the Court concluded that the provision 'neither results in religious indoctrination
by the government nor defines its recipients by reference to religion")
50. See generally ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL
FACT AND CURRENT FICTION (1982)(tracing the development of church-state
relations).
51. See West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
52. See Engel v. Vitale, 370 U.S. 421 (1962).
53. In Tilton v. Richardson,403 U.S. 672 (1971), the Court stated that '[candor compels the acknowledgement that we can only dimly perceive the boundaries of permissible government activity in this sensitive area." Id. at 678; see also Agostini
v. Felton, 521 U.S. 203, 234 (1997)(modifying Lemon and examining whether the
governmental program resulted in governmental indoctrination, defined its recipients by reference to religion, or created an excessive entanglement between
church and state).
54. For example, in Moore v. Monroe, 20 N.W. 475 (Iowa 1884), the Iowa Supreme
Court ruled on the constitutionality of a statute allowing inclusion of religious
exercises in the public schools, given constitutional prohibitions against such
activity.
55. See State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902)(holding that
reading from the Bible, singing hymns, and offering sectarian prayers are forbidden in Nebraska's public schools).
NEBRASKA LAW REVIEW
[Vol. 79:884
been breathing life into their unique constitutional provisions relating
to religion and education long before the federal courts undertook to
interpret the U.S. Constitution's religious guarantee provisions. The
state courts' work is not yet complete, as the Era of the New Federalism may yet see the pendulum swing back toward a position where
they will define basic constitutional rights.
Since the Court's entry into religion and education cases just over a
half-century ago, it has primarily used two tests to scrutinize conflicting claims under the Establishment Clause. The first is the "secular
purpose and effect" model.56 The second is the enduring, but controversial model devised in the 1971 majority opinion of Chief Justice
Burger in Lemon v. Kurtzman.5 7 Never abandoned by the Court's majority,58 certain justices 5 9 have grown increasingly hostile to its application.6 0 This test, referred to as the Lemon doctrine, declares that in
order for government action to survive Establishment Clause scrutiny, (1) the action must have a secular legislative purpose, (2) its
principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion. 6 ' Both tests presuppose the constitutional
value of the doctrine of separation of church and state, whose proponents adhere to the notion that separation is essential to the protection of an individual's religious liberty. 62
During the same sixty year period in which the Supreme Court's
shifting majority struggled to find and apply a separation standard
that had intellectual integrity and could be applied in a common sense
fashion, opponents of separation, both judicial and academic, fought to
discard any remnants of Lemon.6 3 These individuals rejected separation as a guiding principle of First Amendment doctrine and applied a
third "coercion" standard to all Establishment Clause cases.6 4 The co56.
57.
58.
59.
60.
61.
62.
63.
64.
See Abington Sch. Dist. v. Schempp, 374 U.S. 203, 222-24 (1963).
403 U.S. 602 (1971).
See Mitchell v. Helms, 120 S. Ct. 2530 (2000).
See Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 39899 (1993)(Scalia, J., concurring)(collecting opinions criticizing Lemon).
See Lynch v. Donnelly, 465 U.S. 668, 679 (1984)(stating that the Court has "repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area").
See Lemon, 403 U.S. at 612-13.
See Daniel L. Dreisbach & John D. Whaley, What The Wall Separates:A Debate
on Thomas Jefferson's "Wall of Separation"Metaphor, 16 CONST. CoMMrr. 627,
628 (1999).
See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2283-88 (Rehnquist, J.,
dissenting).
See Lee v. Weisman, 505 U.S. 577, 587 (1992). In Lee, Justice Kennedy strongly
endorses the notion of government neutrality in religious matters and declares
that the government may not coerce anyone to support or participate in religion
or its exercises. See id.
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FAITHFUL TO THE CONSTITUTION
ercion standard judges government practices by whether they directly
support religion or coerce citizens to engage in some religious activity.
This means that that conduct advancing or endorsing a particular religious faith would be held to violate the Establishment Clause only if
the conduct were to force, on pain of penalty, an individual to believe
in or act in accordance with a religion against the individual's will.
One writer observed that "[ulnder this standard, theocratic governmental policies would no longer automatically violate the Constitution.... [Cloercion theory radically departs from existing attitudes
about the role of government, the parameters of individual autonomy,
6
and the nature of religion." 5
A fourth test of the constitutionality of government conduct, referred to as the endorsement test, is found in Justice O'Connor's concurring opinion in Lynch v. Donnelly.6 6 Under this test, the Court
looks to see if the government has engaged in purposeful endorsement
of a religion. Justice O'Connor writes that the proper inquiry is
whether a reasonable observer would discern an actual message of en67
dorsement from the government's conduct.
A fifth test derives from language in CapitolSquare Review & Advisory Board v. Pinette.6 8 This test is referred to as the "preferential
access" test.6 9 The focus here is on whether the government has actually created an equal and open forum, or whether the forum in fact
preferred or assisted the promulgation of a religious view.
APPLICATION OF THE TESTS
In Mitchell v. Helms,70 the plurality asserted that Agostini v. Felton,71 a school aid case, had modified Lemon. Nevertheless, the majority opinion by Justice O'Connor in Agostini actually adhered to the
central tests of Lemon. On government aid questions, however, she
found that Aguilar v. Felton,72 an earlier manifestation of Agostini,
was no longer good law. She stated that the Court continues "to ask
whether the government acted with the purpose of advancing or inhibiting religion,"73 observing that the "nature of that inquiry has remained largely unchanged."74 What has been abandoned is the
presumption "that the placement of public employees on parochial
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
Gey, supra note 20, at 465.
465 U.S. 668, 690-91 (O'Connor, J., concurring).
See id.
515 U.S. 753 (1995).
Id. at 766 (opinion of Scalia, J.).
120 S. Ct. 2530 (2000).
521 U.S. 203 (1997).
473 U.S. 402 (1985).
Agostini, 521 U.S. at 222-23.
Id. at 223.
894
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school grounds inevitably results in the impermissible effect of...
indoctrination or constitutes a symbolic union between government
and religion."75 She noted that the Court abandoned the rule that all
government aid that directly assists the education function of religious schools is invalid.76 The excessive entanglement prong of Lemon
remains in tact, Justice O'Connor asserted, but must be measured by
77
its effect.
The prayer case7 8 followed the decision in Lee v. Weisman, 79 which
held that schools may not sponsor prayer as part of their graduation
programs. In the prayer case, the school district argued that the central Lee holding - that the government may not coerce anyone to support or participate in religion or its exercise - did not apply, since the
prayer was private speech.SO The Court held that the use of school
property and facilities "quells any doubt that this policy was implemented with the purpose of endorsing school prayer."81 The majority
emphasized that nothing in the Constitution as interpreted by the
Court prohibits any public school student from voluntarily praying at
any time before, during, or after the school day.82
In the context of elementary and secondary education, endorsement of organized religious activities by school authorities remains
unconstitutional.83 Those who would tear down the "Wall of separation," however, persist in arguing that there has never been justification for such a wall.8 4 They argue that student led prayer is private
speech, protected by the Constitution.8 5 A majority of the Court remains willing to examine such conduct for excessive entanglement
with government, for the test announced in Lemon,8 6 though persistently assailed,87 remains a central feature of First Amendment
doctrine.
75. Id.
76. See id. at 224; see also Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481
(1986)(allowing a state to issue a vocational tuition grant to a blind person who
desired to attend a Christian college).
77. See Agostini, 521 U.S. at 233; see also Meek v. Pittinger, 421 U.S. 349, 358-59
(1975)(noting that the excessive entanglement test provides a proper framework
for analyzing establishment of religion issues, but must not be viewed as setting
precise limits).
78. See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000).
79. 505 U.S. 577 (1992).
80. See Santa Fe, 120 S. Ct. at 2272.
81. Id. at 2282.
82. See id. at 2281.
83. See id. at 2275.
84. See id. at 2284 (Rehnquist, C.J., dissenting).
85. See id. at 2285 (Rehnquist, C.J., dissenting).
86. See 403 U.S. at 612-13.
87. See Santa Fe, 120 S. Ct. at 2284 (Rehnquist, C.J., dissenting).
2000]
FAITHFUL TO THE CONSTITUTION
As for government aid to religious education, the new majority has
agreed on a compromise, while seemingly leaving the Lemon doctrine
in tact, for now. These justices have agreed that direct, nonincidental
aid to church-operated schools is not always impermissible. 8S If aid is
neutrally available, it is presumptively constitutional.8 9 Likewise, aid
that may be divertible to religious use is not always impermissible.O
The burden is on the challengers of such aid to demonstrate the existence of factual impropriety before a court will strike down such
assistance. 9 '
ROLE OF STATE COURTS
Now that the United States Supreme Court has moved into the Era
of the New Federalism,92 is it not appropriate to ask that the federal
courts keep their hands off state and local public schools and for state
courts to re-examine the issues surrounding church-state relations
through the prism of their own state constitutions? 93 There is always
a role for federal intervention where states refuse to enforce minimum
national standards barring the enforcement of government-sponsored
religious activities. 9 4 At the same time, state tribunals have been re88.
89.
90.
91.
92.
See Mitchell v. Helms, 120 S. Ct. 2530, 2540 (2000).
See id. at 2541.
See id. at 2544, 254748.
See id. at 2554.
See generally John C. Yoo, Sounds of Sovereignty: Defining Federalism in the
1990s, 32 IND. L. REv. 27 (1998)(noting that in the 1990s, the Supreme Court
expended considerable effort toward restoring federalism).
93. This would doubtless free the state court to revisit Gaffney v. State Departmentof
Education, 192 Neb. 358, 220 N.W.2d 550 (1974), a case involving a state textbook loan act that was intended to allow the public school districts' boards of
education to provide financial assistance to nonpublic elementary and secondary
schools. The court held the law unconstitutional under the state constitution. It
construed NEB. CONST. art. VII, § 11, noting that the question was fundamentally
different from the one presented under the federal Establishment Clause. See
Gaffney, 192 Neb. at 362, 220 N.W.2d at 553. The court held, "[Tihe Constitution
of Nebraska does not permit of an examination of secular or sectarian purposes, a
determination of primary or incidental benefit, or a balancing of the issues involved in state-church entanglement and political divisiveness. There is no ambiguity in our constitutional provision." Id. at 362, 220 N.W.2d at 553.
The court also examined the proceedings of the Constitutional Convention of
1919-1920, which revealed a clear intent to bar any aid to schools not owned and
controlled by the public. See id. at 362-63, 220 N.W.2d at 553-54. On the question of whether the assistance was child benefit and thus allowable under United
States Supreme Court precedent, the court held that State ex rel. Rogers v. Swanson, 192 Neb. 125, 219 N.W.2d 726 (1974), controlled. See Gaffney, 192 Neb. at
367, 220 N.W.2d at 556.
94. As Leonard Levy has observed, "If the Fourteenth Amendment did not incorporate the First Amendment, the states would be free from the restraints of the
United States Constitution and would be able to enact any measure concerning
religion, subject only to such limitations as might exist in the individual state
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luctant to explore the history, language, and context of their own fundamental laws and to make definitive rulings based on the unique
vision and wording of state constitutions. 9 5
Nowhere is this more obvious than in the State of Nebraska, where
the education guarantees and the religious freedom guarantees reflect
a unique state experience and should be interpreted to vindicate the
true meaning of federalism.96 Nebraska is a state whose history
teaches that an early accommodation of religious schools had divisive
results. 97 The constitution drafters hammered out language meant
unequivocally to erect a wall of separation between religion and state
schools.98
Two provisions of the Nebraska Constitution involve religious freedom. The first, Article I, section 4, guarantees freedom of worship and
rights of conscience, and declares that it is the duty of the Legislature
"to pass suitable laws to protect every religious denomination in the
peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction."9 9
The second is Article VII, section 11, which has been amended
three times by the "usual" processes and once by the Nebraska Supreme Court. This section begins by prohibiting outright the "appropriation of public funds... to any school or institution of learning not
owned or exclusively controlled by the state or a political subdivision
thereof."1 0 0 A century after the original language, an amendment provided that the Legislature may contract with private schools to pro-
95.
96.
97.
98.
99.
100.
constitutions." LEONARD WILLIAMS LEVY, THE ESTABLISHMENT CLAUSE: RELIGION
AND THE FIRST AMENDMENT 225 (1994); see also Everson v. Board of Educ., 330
U.S. 1 (1947)(incorporating the Establishment Clause); Cantwell v. Connecticut,
310 U.S. 296 (1940)(incorporating the Free Exercise Clause).
See, e.g., State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986). In Havlat, Justice Shanahan noted the following in his dissenting opinion:
In construing the Nebraska Constitution, art. I, § 7 ...we should not
unquestioningly follow an analysis tendered by the U.S. Supreme Court
regarding its construction of the fourth amendment [sic] to the U.S. Constitution .... When called upon to construe the Nebraska Constitution,
this court should not exhibit some pavlovian conditioned reflex in an uncritical adoption of federal decisions as the construction to be placed on
provisions of the Nebraska Constitution analogous to the U.S.
Constitution's.
Havlat, 222 Neb. at 572-73, 385 N.W.2d at 444.
See generally Anne Althouse, On Dignity and Deference: The Supreme Court's
New Federalism, 68 U. CIN. L. REv. 245, 251 (2000)(analyzing Alden v. Maine,
527 U.S. 706 (1999), and commenting in the context of United States v. Lopez, 514
U.S. 549 (1995), that "[diecentralized regulation actually serves a positive end:
different localities can look at the nature of the problem ...and design remedies
that express local values").
See JAMEs C. OLSON, HISTORY OF NEBRASKA 98-100 (1966).
See MIEWALD & LONGO, supra note 34, at 126-28.
NEB. CONST. art. I, § 4.
NEB. CONST. art. VII, § 11.
20001
FAITHFUL TO THE CONSTITUTION
vide services for children who are handicapped.lol This section also
declares that "[all public schools shall be free of sectarian instruction."10 2 Finally, an amendment in 1976 provided that the state may
receive federal grants and distribute them in accordance with their
terms. 0 3
In a series of cases during the 1980s, the Nebraska Supreme Court
turned some of its previous jurisprudence upside downlO4 and allowed
student aid for private colleges,1OS allowed public school buses to offer
transportation to youngsters attending parochial schools,10 6 let those
same youngsters borrow books,1o7 and authorized state contracts for
medical research with higher educational religious institutions.1 0 8
Despite these rulings, government distance from parochial education
is still the rule in Nebraska, although a few exceptions have found
their way into the constitution, mostly so that the state could accept
federal money.' 0 9 Nearly a century ago, the state supreme court laid
the foundation for a wall of separation by making it clear that singing
sectarian hymns, offering prayers, and reading from the Bible are forbidden in Nebraska's public schools under state constitutional
principles. 1 10
The linguistic and structural forms of the religious freedom section
of the Nebraska Constitution differ significantly from the First
Amendment. The First Amendment, which is cast as a dual prohibi101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
See MIEwALD & LONGO, supra note 34, at 127.
NEB. CONST. art. VII, § 11.
See MEWALD & LONGO, supra note 34, at 127.
Whether the intent of the Constitutional Revision Commission of 1970 was to
allow wholesale changes to previous bans on aid to non-public schools is not clear
from the Commission's formal report. See REPORT OF THE NEBRASKA CONSTITUTIONAL REvisioN COMUSSION 70-84 (1970). The report states:
The Commission confirmed the present prohibition against the state using public funds for sectarian purposes or appropriating public funds to
institutions not exclusively owned or controlled by the state. At the
same time, the Commission recognized that there are Federal grants
that are designed to be given in part to children in parochial schools.
Under the current Constitution, Nebraska is unable to accept those
grants.
... [The Commission therefore recommended new language containing provisos declaring] that state money could not be added to the federal money.
Id. at 84.
See Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981).
See State ex rel. Bouc v. Sch. Dist., 211 Neb. 731, 320 N.W.2d 472 (1982).
See Cunningham v. Lutjeharms, 231 Neb. 756, 437 N.W.2d 806 (1987).
See State ex rel. Creighton Univ. v. Smith, 217 Neb. 682, 353 N.W.2d 267 (1984).
See, e.g., Special Education Act, NEB. REv. STAT. §§ 79-1110 to 79-1184 (Reissue
1996 & Cum. Supp. 2000); see also Father Flanagan's Boys Home v. Dep't of Soc.
Servs., 255 Neb. 303, 583 N.W.2d 774 (1998)(upholding a statute that required
the state to pay the cost of education of state wards who were placed in a nonpublic school).
See State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902).
898
NEBRASKA LAW REVIEW
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tion against an establishment of religion and a denial of free exercise
of religion,lli is directed at what the government may not do. Conversely, the state constitution's religion clause is, by and large, a declaration of individual rights.12
Early in the October 2000 Term, the U.S. Supreme Court agreed to
hear yet another school-religion case, this one involving the question
of whether a public school must allow a religious organization to use
school property after class hours to hold a series of meetings." 3 The
school district will argue that the Establishment Clause forbids converting public property into a venue for religious exercises. 1 1 4 The organization will argue that the ban adversely impacts free exercise and
free speech."i 5
If states were free to resolve such disputes on state constitutional
grounds, Nebraska, for one, might hold that its constitution absolutely
bars public schools from being used for sectarian instruction.3 6 The
free speech claim might be assessed with reference to whether a public
school is, in fact, a public venue within which vigorous debate must be
tolerated.1 7 The conservative activists on the U.S. Supreme Court
111. See U.S. CONST. amend I; JACK N. RAKOVE, ORIGINAL MEANINGS 41-42 (1996).
112. See NEB. CONST. art. I, § 4; cf. ILL. CONST. of 1870, art. II, § 3, art. VIII, § 3.
113. See Good News Club v. Milford Cent. Sch., 202 F.3d 502 (2d Cir. 2000), cert.
granted, 69 U.S.L.W. 3002 (U.S. Oct. 10, 2000)(No. 99-2036).
114. See id. at 509.
115. See id.
116. See Gaffney v. State Dep't of Educ., 192 Neb. 358, 362-63, 220 N.W.2d 550, 55354 (1974); see also State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846
(1902)(holding that reading from the Bible, singing hymns, and offering sectarian
prayers are forbidden in Nebraska's public schools).
117. See Equal Access Act, 20 U.S.C. §§ 4071-4074 (1988); see generally Leah Gallant
Morgenstein, Note, Board of Education of Westside Community Schools v.
Mergens: Three "R's" + Religion = Mergens, 41 Am. U. L. REv. 221, 228-34
(1991)(discussing the public forum doctrine in the context of public schools and
universities).
In Tinker v. Des Moines Independent Community School District,393 U.S. 503
(1969), the Court held that the public schools could not prohibit the wearing of a
black arm-band by student protesters. See id. at 505-15. Tinker required the
Court to balance the school's need to maintain authority against the free speech
rights of the students and to sanction student expression unless it materially interfered with the requirements of appropriate discipline in managing the school.
See id. at 509, 512-13. Tinker did not decide clothing issues, nor did it approve
anything but the silent, passive expression of opinion. See id. at 513-14.
Except in the context of religious expression, the Court has never declared
schools to be forums that have to tolerate speech and activities. See, e.g., Perry
Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983)(holding that
public property that is neither by tradition or designation a forum for communication may be reserved for its intended purposes, as long as the regulation is
reasonable and not viewpoint discrimination); Minn. State Bd. for Cmty. Colls. v.
Knight, 465 U.S. 271 (1984)(limiting access to school employer-employee discussions to representatives of the employees); Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 679 (1986)(noting that the "determination of what manner of
2000]
FAITHFUL TO THE CONSTITUTION
899
have not been successful in turning America's public classrooms into
chapels.11s They seem intent, however, on turning public schools into
town squares,' 19 where the free speech protections could guarantee
that the nation would go back a half-century and prayer would start
every day. 120 A militant Congress almost appears 2to have conspired
with a willing Court to effect that transformation.1 1
CONCLUSION
There are huge problems and tensions among the warring parties
in religion-school cases, and resort to state constitutional law will not
make them disappear. The determined federal judiciary chooses to
snub history, tradition, and settled state law to inject its version of
civic religion back into the schools. 122 Courts ought to undertake
careful examination of the history, language, and experience before
embracing a one-size-fits-all rule.123 For more than a century, states
such as Nebraska have fought the battle over whether someone's religion ought to be able to co-opt the public schools.124 The nonelected
national judiciary that is eager to insert someone's faith into public
classrooms should not ignore the experience and the anguish of the
speech in the classroom or in the school assembly is inappropriate properly rests
with the school board"); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260
(1988)(calling the student newspaper a non-traditional public forum).
118. See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2271-83 (2000).
119. See id. at 2283, 2287 (Rehnquist, C.J., dissenting)(stating that the Court's opinion is "bristl[ing] with hostility to all things religious in public life," and suggesting that a student prayer, led by one chosen by an official policy, and offered
to a captive audience over the school's public address system would be "private
speech").
120. See generally FRANK S. RAvrrcH, SCHOOL PRAYER AND DISCRMIINATION 4-11 (1999)
121.
122.
123.
124.
(discussing the adverse effects that have resulted from conducting religious exercises in public schools).
See H.R.J. Res. 78, 105th Cong. (1997)(attempting to secure the right to pray in
school through passage of the "Istook Amendment on Religious Freedom"); 130
CONG. REc. 205 (1984)(statement of Sen. Hatch)(proposing a constitutional
amendment permitting school prayer); Ruti G. Teitel, The Unconstitutionalityof
Equal Access Policies and LegislationAllowing Organized Student-Initiated Religious Activities in the Public High Schools: A Proposal for a Unitary First
Amendment Forum Analysis, 12 HAsTINGs CONST. L.Q. 529 (1985).
See generally Engel v. Vitale, 370 U.S. 421, 425-433 (1962)(discussing the history
of the alliance between state and religion which inevitably resulted in "hatred,
disrespect and even contempt of those who held contrary beliefs").
See generally State v. Havlat, 222 Neb. 554, 573, 385 N.W.2d 436, 447 (1986)
(Shanahan, J., dissenting)(noting that the Nebraska Supreme Court should not
uncritically adopt federal decisions, but instead should exercise independence).
See generally State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902)
(considering whether reading from the Bible, singing hymns, and offering sectarian prayers are forbidden in Nebraska's public schools).
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states. 12 5 That is, after all, what the New Federalism - the empowerment of the states - should be about.
125. See Stanley Mosk, State Constitutionalism:Both Liberal and Conservative, 63
TEx. L. REV. 1081 (1985); see also Hans A. Linde, FirstThings First.Rediscovering the States' Bill of Rights, 9 U. BALT. L. REv. 379, 395 (1980)(calling for an
opportunity for state courts to "face closer to home some fundamental values that
the public have become used to having decided for them by the faraway oracles in
the marble temple").